IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140020383 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge under other than honorable conditions (UOTHC) to a general or honorable discharge.

2.  The applicant states, in effect, that he has been diagnosed with post-traumatic stress disorder (PTSD) and contends that PTSD was the catalyst for his misconduct.   

3.  The applicant provides more than 1,000 pages of documents that include military service records and medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge UOTHC to a general or honorable discharge.

2.  Counsel states the characterization of the applicant's discharge was made in error and compelling evidence warrants correction of the record to reflect either a general or honorable discharge.

3.  Counsel provides a six-page self-authored statement and a Department of Veterans Affairs (VA) Form 21-22a (Appointment of Individual as Claimant's Representative).



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was inducted into the Army of the United States on 16 October 1967.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  Evidence shows he served in the Republic of Vietnam from 7 April to 25 August 1969 with Company C, 4th Battalion, 12th Infantry Regiment.

3.  His record contains Special Court-Martial Order Number 149, issued by Headquarters, 1st Advanced Individual Training Brigade, dated 6 April 1968, which shows he pled guilty and he was found guilty by a special court-martial of one specification of absenting himself without authority from his unit for the period 17 February to 14 March 1968.  He was sentenced to confinement at hard labor for 4 months and forfeiture of $45.00 pay per month for 4 months.

4.  His record contains Special Court-Martial Order Number 217, issued by Headquarters, 1st Advanced Individual Training Brigade, dated 3 May 1968, which shows the unexecuted portion of his sentence adjudged on 2 April 1968 and promulgated in Special Court-Martial Order Number 149, was suspended for 3 months, at which time unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

5.  Evidence shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on          18 November 1968 for disobeying a lawful order and disrespect to a noncommissioned officer.

6.  His record contains Summary Court-Martial Order Number 15, issued by Headquarters, 1st Battalion (Mechanized), 10th Infantry Regiment, dated                19 December 1968, which shows he pled guilty and he was found guilty by a summary court-martial of one specification of contempt toward a noncommissioned officer and one specification of using disrespectful language toward a noncommissioned officer.  He was sentenced to be reduced in grade to private/E-1, forfeiture of $25.00 pay for 1 month, and to be confined at hard labor for 30 days.  However, only so much of the sentence as provides for the forfeiture of $25.00 pay for 1 month and reduction in rank/grade to private/E-1 was approved and executed.  The portion of the sentence to be confined at hard labor for 1 month was suspended until 15 January 1969, at which time, unless sooner vacated this portion of the sentence would be remitted without further action.

7.  Evidence shows he once again accepted NJP under the provisions of Article 15 of the UCMJ on 2 April 1969 for absenting himself without authority from his organization from 23 to 29 March 1969.

8.  His record contains Special Court-Martial Order Number 6, issued by Headquarters, 199th Infantry Brigade, dated 18 July 1969, which shows he pled guilty and he was found guilty by a special court-martial of one specification of wrongfully possessing 16.8 grams, more or less, of marijuana; one specification of absenting himself without authority from his unit from 2 to 5 June 1969; and one specification of wrongfully possessing 1.9 grams, more or less, of marijuana.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $60.00 pay per month for 6 months, and to be reduced to the rank/grade private/E-1.

9.  On 29 July 1969, the applicant's commander notified him of his intent to initiate elimination proceedings against him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) due to unfitness. 

10.  The applicant underwent a psychiatric evaluation on 5 August 1969, while confined at the stockade.  A psychiatrist opined the applicant was completely unmotivated for further duty, having no desire to adjust to military life.  He reportedly has had chronic difficulties cooperating with authority and had used various drugs excessively.  Such drug abuse appears to have had a significant adverse effect on his personal functioning in the Army.  The applicant was diagnosed with a passive aggressive personality, chronic, severe, manifested by evasion of responsibility, excessive drug use, stubbornness and inefficiency which was noted to have existed prior to service.  The diagnosis represented a character and behavior disorder; however, the applicant was found to meet retention standards, and there was no psychiatric disease or defect which warranted disposition through medical channels.  

11.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a letter from the separation authority, dated 23 August 1969, that directed the applicant be discharged from service for unfitness under the provisions Army Regulation 635-212.

12.  His record contains Special Court-Martial Order Number 298, issued by Headquarters, 18th Military Police Brigade, dated 25 August 1969, which shows effective 26 August 1969, the unexecuted portion of the applicant's sentence to confinement at hard labor for 6 months was suspended until 26 September 1969, at which time the sentence would be remitted without further action.

13.  His records also contain a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 28 August 1969, under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service of under conditions other than honorable.  He completed 1 year, 6 months, and 15 days of creditable active service with 118 days lost time.  Evidence shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Army Commendation Medal

14.  On 8 April 1973, the Army Discharge Review Board (ADRB) notified the applicant that after careful review of his application, military records and all other available evidence, the ADRB determined that he was properly discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

15.  The applicant and his counsel provide:

   a.  A six-page legal brief (attached), which describes/chronicles what he calls the facts relevant to the petition and an analysis of the applicant's military service in light of Secretary Hagel's 3 September 2014 Directive that "[i]n cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service."
   
   b.  A note from a staff psychiatrist, Veterans Administration Hospital Brooklyn, NY, dated 13 January 1971.  The psychiatrist stated the applicant had been admitted for having dreams of people getting shot and for taking drugs (heroin) related to his service in Vietnam.  He claimed he was put on morphine when his whole company was wiped out at Hamburger Hill.
   c.  A Standard Form 507 (Clinical Record), Intake Interview, from a clinical psychologist, dated 12 August 1971, which states the applicant was seeking admission to the Mental Hygiene Clinic because he was tense and nervous and he was afraid he might go back to using drugs.  It was noted the applicant was a member of the Green Berets in Vietnam and he admitted taking part in some rather difficult experiences involving the enemy.  In Vietnam he smoked opium as well as marijuana, and when he was discharged in 1969, he became what he called "crazy."  The applicant was diagnosed with anxiety reaction and drug addiction.

   d.	VA Form 21-2545 (Report of Medical Examination for Disability Evaluation), dated 29 November 1971, which states that prior to leaving the service the applicant was having trouble with his nerves and bad dreams.  He claimed to get uptight when touched and felt as if someone was chasing him.

   e.  Numerous Medical Progress Notes from 1996 to current day, for example:

* 19 April 1996, the applicant had been hospitalized ten times in the past 4 years for alcohol use, PTSD related symptoms and depression
* 2 December 1996, the applicant's PTSD and depressive symptoms are managed with Zoloft and Klonopin.  The anniversary of his relatives' death also trigger memories of the Vietnam War
* 13 December 2013, a psychiatrist diagnosed the applicant with panic disorder, PTSD, and major depressive disorder

16.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

18.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders.  In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.
From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 

19.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat.  Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

20.  The DSM fifth revision (DSM-5) was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

	a.  Criterion A, stressor:  The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) 

		(1)  Direct exposure. 

		(2)  Witnessing, in person.

		(3)  Indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental.

		(4)  Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

	b.  Criterion B, intrusion symptoms:  The traumatic event is persistently re-experienced in the following way(s): (one required) 

		(1)  Recurrent, involuntary, and intrusive memories. 

		(2)  Traumatic nightmares. 

		(3)  Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. 

		(4)  Intense or prolonged distress after exposure to traumatic reminders. 

		(5)  Marked physiologic reactivity after exposure to trauma-related stimuli. 

	c.  Criterion C, avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required)

		(1)  Trauma-related thoughts or feelings.

		(2)  Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

	d.  Criterion D, negative alterations in cognitions and mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required)
		(1)  Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs).

		(2)  Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous").

		(3)  Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences.

		(4)  Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame).

		(5)  Markedly diminished interest in (pre-traumatic) significant activities.
Feeling alienated from others (e.g., detachment or estrangement).

		(6)  Constricted affect: persistent inability to experience positive emotions. 

	e.  Criterion E, alterations in arousal and reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required)

		(1)  Irritable or aggressive behavior

		(2)  Self-destructive or reckless behavior

		(3)  Hypervigilance

		(4)  Exaggerated startle response

		(5)  Problems in concentration

		(6)  Sleep disturbance

	f.  Criterion F, duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. 

	g.  Criterion G, functional significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H, exclusion:  Disturbance is not due to medication, substance use, or other illness. 

21.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.  

22.  In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.

23.  BCM/NRs are not courts, nor are they investigative agencies.  Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered:

* Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
* Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* Was the applicant's condition determined to have existed prior to military service?
* Was the applicant's condition determined to be incurred during or aggravated by military service?
* Do mitigating factors exist in the applicant's case?
* Did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
* Was the applicant's misconduct premeditated?
* How serious was the misconduct?

24.  Although the DoD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service.  Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, the applicant's discharge proceedings for unfitness appear to have been conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time.

2.  At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DoD.  However, both the medical community and DoD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion.

3.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible 
re-characterization of their overall service.

4.  The applicant was an infantryman assigned to an infantry unit in the Republic of Vietnam and he was awarded the Combat Infantryman Badge.  A review of the applicant's record and the evidence that he provided shows that he was subjected to the ordeals of war while serving in the Republic of Vietnam.  

5.  Subsequent to these experiences, medical evidence shows the applicant was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 

6.  The applicant's record contains multiple prior instances of misconduct for which he was punished prior to his arrival in the Republic of Vietnam; however, his subsequent misconduct of being absent from his unit and possession of marijuana while in the Republic of Vietnam appear to have been associated with his experience while subjected to the ordeals of war.

7.  It is concluded that PTSD conditions were a causative factor in the misconduct which led to his discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.  However, in weighing the same above factors, the applicant's overall service does not rise to a fully honorable characterization of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 28 August 1969 to show the characterization of service as "General, Under Honorable Conditions." 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the applicant's   DD Form 214 for the period ending 28 August 1969 to show the characterization of service as "Honorable."  




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140020383





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ABCMR Record of Proceedings (cont)                                         AR20140020383



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